Citation NR: 9633128
Decision Date: 11/22/96 Archive Date: 12/02/96
DOCKET NO. 95-18 987 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Salt Lake
City, Utah
THE ISSUE
Entitlement to a permanent and total disability evaluation
for pension purposes.
REPRESENTATION
Appellant represented by: John J. Borsos
ATTORNEY FOR THE BOARD
J. Johnston, Associate Counsel
INTRODUCTION
The veteran had active service from February 1975 to November
1976. He was administratively separated prior to the
expiration of his initial term of enlistment with a general
(under honorable conditions) discharge.
This matter comes before the Board of Veterans’ Appeals
(Board) on appeal from a December 1994 rating decision issued
by the Salt Lake City, Utah, Department of Veterans Affairs
(VA) Regional Office (RO), which denied entitlement to
nonservice-connected pension. While the RO, in its May 1995
statement of the case, has separated components of the
veteran’s claim for nonservice-connected pension into
separate issues, the sole issue on appeal is the veteran’s
entitlement to nonservice-connected pension which of course
includes an individual evaluation of each disability shown
which is not the result of the veteran’s own willful
misconduct.
REMAND
In April 1993, the RO issued an administrative decision which
found that injuries sustained by the veteran in October 1991
resulted from his own misconduct in that they were incurred
by reason of his arrest for spousal abuse, for assault on a
police officer and for resisting arrest. It was determined
that injuries to the veteran’s low back were incurred as a
result of his conduct and could therefore not be considered
with respect to a claim for nonservice-connected pension.
The determination was made based on a Report Of Contact with
the police department involved in the incident that noted
only that the veteran had been arrested for spousal abuse,
resisting arrest, and assaulting an officer. The final
outcome was not known (whether the veteran was convicted of
the charges, found not guilty, or whether the charges were
dropped). A written copy of the report would only be
released with a subpoena, or a written statement from the
veteran. The veteran was informed of the need for the record
by VA in a December 1992 letter. He did not respond. This
needs to be revisited.
The veteran also claims, and the evidence shows, that he was
injured in an accident in March 1992. The veteran claims he
was hit by an automobile while riding a bicycle and it is
indicated that he sustained a reinjury to his low back, as
well as cervical strain and a nondisplaced transverse
fracture of the right patella. The RO subsequently assigned
10 percent, nonservice-connected evaluations for pension
purposes for both subpatellar chondromalacia with history of
fractured right patella, and for a cervical spine sprain.
However, the evidence on file surrounding this accident
suggests the possibility that these injuries might resulted
from the veteran’s own misconduct. Records of private
emergency room treatment from March 1992 contain an admitting
nurse’s notation of “ETOH/FELL OFF BICYCLE.” This report
also states that the veteran was riding his bicycle and
maintained that he had been struck by a car, but there was no
car at the scene and the bicycle showed no evidence of being
struck by a car. Upon admission, the veteran was extremely
combative, refused to answer questions, and refused and
interfered with appropriate medical treatment. Records
associated with this emergency admission refer to (1) blood-
alcohol greater than .300, (2) Breathalyzer testing of .239,
(3) ETOH 294, and (4) Breathalyzer at discharge of 118. The
Board is of the opinion that the case must be returned to the
RO for consideration and issuance of a misconduct
determination regarding this incident and all injuries
attributable thereto.
The veteran is shown to have had viral hepatitis during
service associated with IV Heroin abuse. IV drug abuse after
service is also demonstrated and the most recent October 1994
VA examination resulted in the diagnostic impression of
hepatitis C infection. While the veteran was noted to have
primary complaints of jaundice and chronic fatigue associated
with this diagnosis, there were no recent laboratory studies
to substantiate biochemical evidence of chronic active
hepatitis. The plan recorded at the conclusion of this
examination was to obtain serum transaminases and to obtain
hepatitis B serologies. While these additional laboratory
studies were recommended, none were apparently performed. A
complete series of hepatitis protocol testing should be
performed during remand.
Accordingly, the case is REMANDED to the RO for the following
actions:
1. The veteran should be requested to
identify all disabilities which he claims
entitle him to a permanent and total
disability evaluation for pension
purposes and to complete another VA
Form 21-526, Application for Pension. He
should also be afforded the opportunity
to submit additional evidence in support
of his claim and to identify any sources
of medical treatment, private or VA, in
addition to that which is already on file
in the claims folder. If he identifies
any medical treatment for which records
are not on file, he should be assisted in
obtaining copies of such records.
2. The RO should collect copies of all
records of the veteran’s treatment or
evaluation for any disability with the VA
which are not already on file and add
them to the claims folder.
3. The veteran should obtain a copy of
the police report concerning his arrest
for spousal abuse, assaulting a police
officer and resisting arrest. Any court
records documenting the outcome of this
incident should also be provided by the
veteran. Once obtained, the records are
to be associated with the claims folder.
4. The veteran should be requested to
provide an employment history since he
was separated from service. With the
veteran’s consent, the RO should contact
each named source to determine why he
left their employment. Any material
obtained should be added to the claims
folder.
5. At any time during the REMAND, the
veteran should be provided a complete
series of hepatitis testing procedures,
such as those suggested at the conclusion
of the veteran’s October 1994 VA
examination for the purpose of
determining the exact nature, extent and
severity of the veteran’s hepatitis. It
should be determined whether the veteran
actually has any chronic active hepatitis
and all symptoms residual thereto must be
recorded in detail for evaluation of the
veteran’s present claim. The VA
physician conducting this testing and
evaluation should also offer an opinion
regarding the relative permanence of any
residual symptoms demonstrated.
6. When the requested development has
been completed, the case should be
reviewed b the RO and a rating action
prepared which includes consideration of
all relevant provisions of Title
38 United States Code, and 38 C.F.R.
Parts 3 and 4, and each of the veteran’s
disabilities found not to result from the
veteran’s own misconduct rated under the
VA’s 1945 Schedule for Rating
Disabilities, 38 C.F.R. Part 4, with
there being special notation and
discussion of the diagnostic criteria
used for rating each disorder. The RO
should consider the two standards by
which a permanent and total disability
rating for pension may be assigned,
including the “average person” and
“unemployability” tests outlined in
38 U.S.C.A. § 1502(a)(1) (West 1991 &
Supp. 1995) and 38 C.F.R. §§ 4.15 and
4.17 (1995), and consider the provisions
of 38 C.F.R. § 3.321 (1995). If the
benefit sought on appeal is not granted,
the veteran and his representative should
be furnished a supplemental statement of
the case and afforded an opportunity to
respond. The records should then be
returned to the Board for further
appellate review after compliance with
all appellate procedures.
No action by the veteran is required until he receives
further notice.
RENÉE M. PELLETIER
Member, Board of Veterans' Appeals
(Continued on next page)
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, 741
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Veterans Appeals. This remand is in the nature of a
preliminary order and does not constitute a decision of the
Board on the merits of your appeal. 38 C.F.R. § 20.1100(b)
(1995).
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